Warren v. Dickerson , 3 Tex. 460 ( 1848 )

Mr. Justice Lipscomb,

after stating the facts, delivered the opinion of the court.

From the plaintiff’s claim of title she does not stand in a more favorable position than her father would, were he alive, and contesting the validity of the purchase of tbe slave by Tutt from Warren, the husband. And it will not admit of controversy, that if he had been so negligent of his rights as to permit his property loaned by him to be brought off from Mississippi to Texas, without having it accompanied by notice of his ownership, directly or constructively, by having it recorded in the place to where the property had been conveyed, his right would not stand against the intervening creditors or purchasers without notice. His negligence in the assertion of his rights had given such color of title to Warren, the husband, as to give him a credit; and it would be a fraud upon a creditor or purchaser without notice to permit his title to prevail against them. The principle of law governing eases of this kind is too plain and too well established by authority to be questioned. I,t is clear that Mrs. Warren could not claim title under the will before the death of her father — Nemo haeres viventis; and the fact that the negro had been bequeathed, to her a short time before the sale could not strengthen her title without notice to the purchaser of such bequest.

- The record of the will in Mississippi could not constitute such notice. [See Crosby vs. Huston, 1 vol. Tex. R.]

The principle decided in the several oases of the United States Bank vs. Lee, 13 Peters’ R. 107; Crenshaw vs. Anthony, Martin & Yerger, 110; and Parks vs. Willard, 1 vol. Tex. R. 350, when understood, is that if the title of the wife was acquired before the removal of herself and the property by the husband, and was valid in such place where so acquired, the failure to give notice of such title in the place of her new domicile cannot prejudice her rights. The exception is believed to be founded in the wisest policy growing out of, and essential to, the relation of husband and wife. She is required to accompany him in his wanderings through life, and to make the home of his choice her home; and it is not consistent with the harmony of the relation, that she should proclaim the fraud of her husband when he offers to sell her property as his own. Had, then, the plaintiff’s title been valid before removing to Texas, it could not have been destroyed by any act of the husband, or by silence on her part in not proclaiming her rights. If she has not enjoyed what her father may have intended for her special use, it does not arise from any defect in the laws, or the administration of them, but from the negligence of a parent and the profligacy of a husband.